1.
ACCEPTANCE
The Contract (“contract”) between PURCHASER and SELLER shall consist of the terms written on the face hereof, these printed terms and conditions and any detailed specifications, drawings and samples specifically incorporated by reference on the face hereof. SELLER’s acknowledgement of receipt of this Purchase Order shall constitute acceptance of the contract. PURCHASER hereby objects to any different or additional terms in any proposal, acknowledgement, acceptance or other instrument of the SELLER. PURCHASER’s acceptance of any instrument of SELLER is expressly conditioned on SELLER’s assent to any additional or different terms included in these printed terms and conditions, or written on the face hereof. In the event of conflict between the terms written on the face hereof and these printed terms and conditions, the terms written on the face hereof shall prevail. 2.
DELIVERY
SELLER shall notify PURCHASER immediately in writing of any delay or anticipated delay in SELLER’s performance under the contract. If such delay is due to causes beyond the control of SELLER and such causes were not reasonably foreseeable by SELLER at the time of entering into this contract, and PURCHASER exercises its option to cancel this Purchase Order, the provisions of Paragraph 6 hereof shall apply. In addition, SELLER shall not be relieved under any circumstances of the obligation to procure alternative suppliers or materials with respect to subcontracted or purchased labor, materials or services, except by written consent of PURCHASER. 3.
INSPECTIONS AND EXPEDITION
Items supplied hereunder and materials and components incorporated therein shall be subject to inspection and /or expediting at the PURCHASER’s option by PURCHASER or his designee during and after manufacture. Final inspection shall be made after receipt by PURCHASER at PURCHASER’s final destination, unless otherwise specified in this agreement. Neither inspection nor failure to inspect shall relieve SELLER of responsibility with respect to items supplied hereunder or imply acceptance thereof. Goods requiring a Certificate of Conformance, Certified Material Test Report, and other Quality Documents will not be considered received without the accompanying quality documents. 4.
WARRANTY OF SUPPLIES AND SERVICES
a. The SELLER warrants that for a period of one year all supplies furnished under this
agreement will be free from defects in material and workmanship and will conform
to all requirements set forth in this contract. This warranty shall not extend to any
item or property that is supplied by the PURCHASER.
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If the SELLER modifies any item of property provided by PURCHASER, this warranty shall cover the PURCHASER furnished property to the extent of the modification work performed by SELLER, SELLER and related services required under this contract. “Design Services” and “Services” shall mean the SELLERS services necessary meet the specification and /or requirements of this agreement. b. To the extent SELLER has designed the supplies delivered under this contract, or has
otherwise provided services to PURCHASER, SELLER warrants that the design, or
other services, provided under this agreement will, at the time of acceptance, be
free from defect in workmanship and conform to the requirements set forth in this
contract.
c. In order to assert any rights under this Warranty Clause, the PURCHASER shall give
written notice of any defect under subparagraph [a] and [b] above, within 12
months of acceptance, with the exception of latent defects in the supplies or
services, in which case, notice maybe provided when the defect is discovered.
d. Upon receipt of a written notice as provided in subparagraph [c] above, the
PURCHASER may elect to have the SELLER correct or repair the supplies, or to re‐
perform the defective or nonconforming service, at the sole election of the
PURCHASER. Any repairs, correction or re‐performance by SELLER shall be at no cost
to the PURCHASER, and shall be performed within a reasonable time. Any work
performed by SELLER under this Warranty Clause shall carry the same warranty
coverage provided herein, with the warranty period provided in this clause
computed from the date of delivery of the corrected supplies or services. If the
SELLER fails or refuses to correct the supplies, or re‐perform the services, the
PURCHASER may, by contract or otherwise, correct or replace with similar services
and charge to the SELLER the cost occasioned to the PURCHASER thereby, or make
an equitable adjustment in the agreement price, at the election of the PURCHASER.
e. When supplies are returned to the SELLER, the SELLER shall bear the transportation
costs from the place of delivery specified in the agreement (irrespective of the f.o.b.
point or the point of acceptance), to the SELLER’s facility and return to the
PURCHASER.
f.
Notwithstanding the provisions of this clause, PURCHASER retains its rights under
existing common and statutory law for any defective or non‐conforming product or
service delivered under this agreement.
g. Definitions: “Acceptance” as used in this clause means the act of an authorized
representative of the PURCHASER by which the PURCHASER assumes for itself, or as
an agent of another, ownership of existing and identified supplies, or approves
specific services rendered, as partial or complete performance of the contract.
“Correction” as used in this clause, means the elimination of a defect. “Supplies”
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shall mean the end items specified in this contract, and furnished by the SELLER and related services required under this contract. “Design Services” and “Services” shall mean the SELLERS services necessary meet the specification and /or requirements of this agreement. 5.
CHANGES
PURCHASER shall have the right to make changes by written notice in the work ordered under this Purchase Order and SELLER agrees to perform this Purchase Order in accordance herewith. Changes include but are not limited to the following: (i) drawings, designs, or specifications, when the supplies to be furnished are to be especially manufactured for the PURCHASER, in accordance therewith; (ii) method of shipment and/or packing, (iii) date or place of delivery. If in the SELLER’s opinion such changes will cause an increase or decrease in the cost of, or time required for performance hereunder, SELLER shall notify PURCHASER promptly. If additional cost or time is required, SELLER shall not proceed without written authorization from PURCHASER and if PURCHASER directs SELLER to proceed, PURCHASER shall make an equitable adjustment in the price and delivery/completion schedule. SELLER shall not substitute materials or accessories for those specified in the ORDER without prior authorization of the PURCHASER. If such changes cause an increase or decrease in the cost of or time required for performance, an equitable adjustment in the price and/or delivery schedule shall be made. SELLER must assert its right to an adjustment under this clause within twenty (20) calendar days from the date of receipt of the written notice. The PURCHASER shall not be liable for any additional or extra work unless such work has been specifically authorized by the PURCHASER. In the event that the SELLER and the PURCHASER disagree on any equitable adjustment under this clause, such disagreement shall not excuse the SELLER from proceeding with the work under the ORDER. 6.
TERMINATION
a. Default. PURCHASER may terminate this agreement or any part thereof by written
notice if SELLER fails to make deliveries or complete performance of services within
the time specified or in accordance with agreed schedules (unless such failure is due
to acts of God, Government, strike, the public enemy or other causes beyond
SELLER’s control), if SELLER fails to comply with the terms and conditions of this
agreement and does not cure such failure within a period of 10 days after written
notice thereof, or if SELLER makes an assignment for the benefit of creditors,
becomes insolvent or subject to proceedings under any law relating to bankruptcy,
insolvency or the relief of debtors. Should PURCHASER elect to terminate for default
in accord with this paragraph, of all or any of the items to be supplied hereunder,
and under any other purchase orders in SELLER’s premises, PURCHASER may take
possession of all or any of the items to be supplied hereunder and under any other
purchase orders in SELLER’s possession, without regard to state of completion and
may complete such items for SELLER’s account in all events. User shall not be or
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become liable to SELLER or anyone claiming through or under SELLER for any portion of the cost or price of any items PURCHASER elects not to accept following notice of termination. b. In addition to any other rights PURCHASER may have with respect to cancellation or
termination, PURCHASER may terminate the Purchase Order as to all or any part of
the work for which SELLER’s performance is not yet completed by giving written
notice of termination of the SELLER. Following notice of such termination, SELLER
shall do only such work as is necessary to preserve and protect goods completed or
in process of completion. If SELLER is not in default under this Purchase Order at the
time such notice is given, PURCHASER will make an equitable termination payment
to SELLER based on the proportion of the work completed, reasonable cost incurred
in connection with the terminated work and if SELLER would have realized profit
under Purchase Order, a reasonable profit on the work performed. Such payment
shall not exceed the fraction of the total Purchase Order price, which is allocable to
the work performed, and any such payment shall be subject to audit by PURCHASER.
SELLER shall submit his claim for a termination payment within thirty days after
receiving notice of termination, and shall take prompt action to minimize costs,
which form part of such claim. SELLER shall deliver promptly in accordance with
PURCHASER’s delivery instruction all completed goods and work in process.
7.
TITLE AND RISK OF LOSS
SELLER agrees to deliver to the PURCHASER title to the goods covered by this Purchase Order free and clear of all liens, claims and encumbrances. Title and risk of loss to goods delivered hereunder shall pass to PURCHASER upon acceptance by PURCHASER at PURCHASER’s plant or at another delivery location designated by PURCHASER, unless otherwise agreed in writing. 8.
INDEMINITY
SELLER agrees to be responsible for and indemnify and hold harmless the PURCHASER from and against all loss, liability, cost and expense (including attorney’s fees) relating to bodily injury including death, and damage to property arising out of the negligent act or omission of the SELLER, its employees, agents and subcontractors. 9.
PATENTS, TRADE SECRETS, COPYRIGHTS AND TRADEMARKS
SELLER represents and warrants that all products delivered and services performed, pursuant to this Agreement and the sale or use thereof do not infringe any patent, trade secret, copyright or trademark, and that SELLER will at SELLER’s expense, defend, indemnify and hold harmless PURCHASER and PURCHASER’s customers from and against all claims, demands, actions and liability based on alleged or actual infringement thereof. PURCHASER, at its option, may require SELLER to deliver non‐infringing goods or services, to modify SELLER’s goods and services so as to become non‐infringing, to procure for PURCHASER the right to continue using SELLER’s Mid Columbia Engineering, Inc. Terms and Conditions
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infringing goods and services, or in the case of goods to refund the purchase price thereof upon the return by PURCHASER of the infringing goods. 9.
ASSIGNMENTS AND SUBCONTRACTING
SELLER shall not assign this Purchase Order or subcontract the whole or any part hereof without the PURCHASER’s prior written consent. SELLER’s purchase of raw materials or standard commercial articles shall not be deemed a subcontract. 11.
EQUAL EMPLOYMENT OPPORTUNITY
In performing this Purchase Order, SELLER agrees to comply with Executive Order 112466, as amended, the Rehabilitation Act of 1973, and the Vietnam Era Veterans Readjustment Assistance Act of 1972, and the equal opportunity clauses contained therein are hereby incorporated into the purchase order. 12.
TITLE TO DRAWINGS AND OTHER TECHINICAL INFORMATION if applicable
The property interest in any drawings or other technical information which PURCHASER supplies to SELLER shall remain the sole and exclusive property of PURCHASER and SELLER agrees not to disclose such drawings and information to others without PURCHASER’s prior written consent. 13.
PUBLICITY
SELLER shall obtain the consent of PURCHASER prior to any publicity regarding any order hereunder, and PURCHASER shall have the right to participate in the content of any such proposed publicity. 14.
GOVERNING LAW
This agreement is entered into and shall be construed in accordance with the laws of the State of Washington. 15.
PAYMENT
Payment date and cash discount period shall be calculated from the date of receipt of an acceptable invoice or receipt of the goods including quality documentation at destination, whichever is later. Payment due net 45 days, upon receipt of invoice or materials, whichever is later. Mid Columbia Engineering, Inc. Terms and Conditions
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16.
INSURANCE
SELLER shall procure and maintain worker’s compensation, employer’s liability (bodily injury and property damage), and such other insurance as may be necessary to satisfy its potential liability. 17.
MISCELLANEOUS
If one or more terms and conditions herein are proved to be invalid, the remaining terms and conditions will nevertheless be of full force and effect. The headings in the agreement are for convenience or reference only. 18.
ALTERNATIVE DISPUTE RESOLUTION
SELLER and PURCHASER agree to make good‐faith efforts to settle any dispute or claim that arises under this agreement through discussion and negotiation. If such efforts fail to result in a mutually agreeable resolution, the parties shall consider the use of alternative disputes resolution (ADR). In the event non‐binding mediation or arbitration is agreed upon, the site of the proceedings shall be Richland, Washington. The mediator or arbitrator shall allocate cost except that there shall be no predecisional interest costs and each party shall bear its discretionary cost. In the event that ADR fails or is not used the parties agree that the appropriate forum for resolution shall be as follows: a. Subject to subparagraph (b) below, any litigation shall be brought and prosecuted
exclusively in Federal District Court, with venue in the United States Court for
Eastern Washington, located in Richland, Washington.
b. Provided, however, that in the event the requirements for jurisdiction in Federal
District Court are not present such litigation shall be brought in Benton County
Superior court, located in Kennewick, Washington.
19.
REMEDIES
The remedies reserved in this ORDER shall be cumulative and in addition to any other remedies provided by law or equity. No waiver or breach of any provision hereof shall constitute waiver or breach of any other provision. 20.
INDEPENDENT CONTRACTOR
SELLER is an independent Contractor and neither an agent nor employee of PURCHASER. 21.
MATERIALS RETURNED
Parts returned within 60 days must be refunded by method paid. Mid Columbia Engineering, Inc. Terms and Conditions
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Mid Columbia Engineering, Inc. 2155 Robertson Drive Richland, WA 99354 Phone: 509‐943‐6706 Fax: 509‐375‐5120 Mid Columbia Engineering, Inc. Terms and Conditions
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